State versus Terry comes to this Court by virtue of a writ of certiorari granted
to the Ohio State Supreme Court. This case originally arose in the Common Pleas
Court of Cuyahoga County, based upon the indictment for carrying a concealed
weapon, in violation of Ohio Revised
Code, Section 2923.01.

The
defendant in this case filed a motion to suppress the evidence, and at the
trial there was a hearing on the motion. After hearing the motion, the motion
was overruled and the case proceeded to trial. This was a bench trial, jury
having been waived.

After
hearing the evidence, the motion originally filed was overruled again. The
defendant was convicted of carrying a concealed weapon. The trial court ruled
by opinion in this case, and we then appealed to the Court of Appeals for
Cuyahoga County. This Court sustained and affirmed the conviction of the lower
court. This Court also wrote an opinion.

Subsequently,
application was made to the Ohio State Supreme Court, for review, and that
court dismissed the application for review stating: no debatable constitutional
question. This Court granted certiorari.

The
facts in this case are these—and I think they are signally important, if we are
to try to arrive at the proper verdict, with reference to this case: This
incident occurred at 2:30 in the afternoon, in broad daylight in the downtown
section of Cleveland, Ohio. The police officer in this case, one Martin
McFadden, noticed two Negro males standing at the corner of Fourteenth Street,
in the City of Cleveland, where Euclid Avenue and Huron Road intersect. These
two streets, if the Court please, form a tri­angle at the apex of East
Fourteenth Street. The police officer was approximately 100 feet away from
where these two men were. He positioned himself—

MR.
JUSTICE STEWART: What kind of neighborhood is that, generally, in Cleveland? A
business neighborhood?

MR.
STOKES: That is our downtown business section of the City, Your Honor.

MR.
JUSTICE STEWART: Downtown retail stores, and offices, and so on?

MR.
STOKES: Yes, Your Honor.

The
testimony of the police officer was that there was business as usual in the
downtown center of the City; stores were open and there were pedestrians on the
street.

MR.
JUSTICE STEWART: What time of day was it?

MR.
STOKES: 2:30 in the afternoon.

MR.
JUSTICE STEWART: On a weekday?

MR.
STOKES: On a weekday.

The
police officer stated that he positioned himself in the doorway of a department
store by the name of Rogauffs. For a period of 10 to 12 minutes, he observed
these two males at the corner. Alternately, each made five or six trips over to
stores located on Huron Road. He said that he didn’t know whether it was the
United Airlines store, or the Diamond Store, but the stores were immediately
adjacent to one another on Huron Street.

During
these five or six trips that they made during the ten or twelve minute period,
a third male came by—white male—who stood and talked with the two males for a
moment or so and then the other male proceeded west, on Euclid Avenue, and the
two males continued on this corner. After the ten to twelve minute period, the
two men then walked west on Euclid Avenue, some several hundred feet down
Euclid Avenue.

When
they arrived at Zucker’s Store, which is in the vicinity of Ninth Street, or
Eleventh Street, there on Euclid Avenue, the three males then again met up, at
which time the three of them— according to the police officer’s testimony—were
merely standing in front of Zuckers Store—

MR.
JUSTICE STEWART: What kind of a store is Zuckers Store?

MR.
STOKES: Zuckers is a haberdashery, Your Honor.

His
testimony was that their backs were to the plate glass windows. They were
facing the street. And when interrogated with reference to what they were doing,
he said they were merely standing there talking. He described their gait away
from Fourteenth Street as they walked down to the haberdashery as a normal
walk—nothing unusual about it.

The
police officer then says, “I then went over to the three men. I said to them,
‘I’m a police officer. What are Your names?”’ In the first instance, he said:
“They gave it to me quick.” In all other places in the record, he says: “They
numbled something.” He said, at this: “I then reached out and got Terry. I spun
him around, holding him in front of me. I then began to pat him down.” Once he
patted him—patted this man down—he says: “I felt inside of his top coat what
felt to be the handle of a gun. I then reached inside the coat and tried to
remove the gun. I could not remove the gun. I therefore took the entire coat
off of him and then took the gun out of the coat.”

At
this point, he says: “I ordered the three of them into the tore. As I walked
through the doorway, I said to the store personnel, ‘Order the wagon.”’ He later
explained that “ordering the wagon” means you are then under arrest. Once
inside the store, the three men were ordered up against the wall, whereupon he
then searched Chilton. Inside of Chilton’s top coat, he also found loaded
revolver. He searched the third male, Katz, upon whom he found nothing.

He
then calls these men to be removed from the haberdashery to the Cleveland
Police Station. When they arrived at the police station, they were then booked
for investigation. Some time late the next day, after having been interrogated
the following morning, these men were then charged, officially late the second
day, with carrying concealed weapons.

The
police officer testified further with reference to questions propounded to him
having to bear on the question of probable cause. We asked him, “Did you know
any of these men?” “No.” “Had you ever seen any of these men previously?” “No.”
“Had anyone given you any information regarding them?” “No.”

He
was then asked what had attracted his attention to them. He said, “Well, to
tell the truth, I didn’t like them. And I was attracted to their actions up
there on Fourteenth Street.”

MR.
JUSTICE BLACK: He said what? “I didn’t like—”?

MR.
STOKES: In the record, Mr. Justice—

MR.
JUSTICE BLACK: What was his answer?

MR.
STOKES: He said, “Well, to tell you the truth, I didn’t like them.”

MR.
JUSTICE BLACK: He “didn’t like them”?

MR.
STOKES: Yes. Then, he said further, Mr. Justice, that: “I was attracted to
their actions there at Fourteenth Street.”

This
officer testified further, though, that he felt that they might be casing the
place for a stick-up. We then—the Court then inquired of him, specifically, if
he had ever—and by the way, this police officer had been a police officer for
39 years, and a detective for 35years.

MR.
JUSTICE BRENNAN: Was he in plain clothes?

MR.
STOKES: He was in plain clothes, Your Honor. The Court specifically asked him
if he had, during his 39 years as a police officer, previously observed anyone
“casing a place.” He said, “No,” he had not. When asked if he had arrested
anyone for “casing a place,” in his 39 years, he said that he had not.

We should like to make reference, just
briefly, to the decision of the lower court in this matter. Our court held, in
that opinion, that “There is no evidence that any warrant had been issued for a
search, or frisk, and I am not going to stress the facts and state that there
was a lawful arrest prior to the frisk of the defendants. I believe it would be
stretching the facts beyond reasonable comprehension, and foolhardy, to say
there was an unlawful arrest because there wasn’t from the facts as presented.”

Later, in this same opinion, our trial
court said: “I believe, and I reiterate again, that search and seizure laws
cannot be applied to this particular situation, although Mr. Reuben Payne
endeavors to show there was a lawful arrest. But the Court cannot agree. If
there was an arrest, it came subsequent to the frisk.”

The
Court then based its decision upon Kerv. CaIifornia. The Court
said that the Kerdecision did not preclude the states from developing workable
rules in order to bring about effective law enforcement in the states. The
Court said, with reference to the acquisition of the gun, that the gun was the
fruit of the frisk and that probable cause arose once the police officer had
frisked, found the gun; he then had the probable cause to arrest.

Our Court of Appeals, in affirming the
decision, stated that: “A policeman may, under appropriate circumstances,
reasonably inquire of a person concerning his suspicious on-the-street
behavior, in the absence of reasonable grounds to arrest.” Our court admitted
that in all probability this would lead to abuses by the police, but then went
on to say that: “The Court would deal with the abuses as they arose before the
Court.”

The Court stated, further, that this of
course was just a minor inconvenience with the personal liberty that is
guaranteed, and that therefore each citizen ought to be willing to give up this
amount of his personal liberty in order that they might have effective law
enforcement in the community.

Our Court offered this definition of
arrest: “That as the term is used in criminal law, it signifies the
apprehension or detention of the person of another in order that he may be
forthcoming to answer an alleged or supposed crime.”

They
distinguished Henry v. U.S., by saying that in that case the
Government had made a concession, and therefore when this Court rendered Henry that it was rendering it on the
unique situation where the government had come in and conceded that at the time
the automobile was stopped, the arrest had occurred and they, therefore, said
this Court had not, in that case, rendered an independent view of the facts;
and, in fact, had held that this was an arrest in the absence of probable
cause.

MR.
JUSTICE FORTAS: I suppose that your contention here is that the policemen
had—there is nothing in the record to indicate that the policeman had any
reason to fear bodily harm to himself?

MR.
STOKES: Well, we’re saying that; and we’re saying this, in addition to that,
Your Honor. We are saying that, at the point this police officer approached
these men, and at the point he laid his hands on the citizen, that he had—he
did not have the prob­able cause that is required. He has stated that all he had,
at that point, was this intuitive sixth sense, and that he had never in his
long experience as a police officer ever arrested anyone for this purpose.

MR.
JUSTICE FORTAS: I understand that. But we have to think about your case, and
the preceding cases, in whatever relationship may be appropriate, one to the
other. And here there is no sug­gestion, is there, that the policeman had any
basis for fear as to his own safety? Am I right? Because there is nothing in
the record to indicate that.

MR.
STOKES: There is nothing in the record whatsoever, and we might add—

MR.
JUSTICE FORTAS: What happened here, and perhaps it would be your contention
that the policeman was engaged in a search for evidence when he spun Terry
around and put his hand inside of his coat. Is that your position?

MR.
STOKES: This is our position, Mr. Justice Fortas.

MR.
JUSTICE STEWART: I don’t understand your answer to Mr. Justice Fortas when you
said there is “nothing in the record to indicate,” that the policeman didn’t
have concern for his own personal safety, because I thought he said that, based
on his intui­tion, he thought these people were casing the place in order to
rob it. Isn’t that what he said?

MR.
STOKES: This is what he said.

MR.
JUSTICE STEWART: Well presumably, then, they would be armed; and the minute he
walked up to talk to them, he would quite reasonably be concerned for his own
personal safety, I should think.

MR.
STOKES: Well, if I understood Mr. Justice Fortas’s question correctly, I
understood him to say: Was there anything in the record which indicated he had
any reason to be concerned with his own personal safety?

MR.
JUSTICE STEWART: Well this is in the record, that he thought—whether with, or
without, reasonable cause—he thought or suspected that these were armed robbers
about ready to hold up a place. And I suppose that if you walk up to such
people, and begin asking them embarrassing questions, you might have some
little concern for your safety if you bona fidedly believe that they have
weapons on them. Now that much is in the record.

MR.
STOKES: Yes, Your Honor.

MR.
JUSTICE FORTAS: Is that so? Excuse me? Does the record show that he had—or he
thought these men were armed, before he put his hands on them?

MR.
STOKES: Yes. He says—after he says he thought they might be casing the
place—”and I felt that they might have guns”. He did say that.

MR.
JUSTICE FORTAS: He testified to that effect?

MR.
STOKES: Yes, he did.

But,
in both our lower court and in our Appellate Court, in stating that a police
officer should inquire promptly into suspicious on-the-street activity, we
brought out the fact—and the record will show—that there was no interrogation,
there was no investigation in this case as a result of the officer approaching
him. The court said he had the right to approach, to investigate, and to
interrogate. But the only question in the record is: “What are your names?” At
which point, he then grabbed Terry, spun him around, and began his search.

During
the interim period while they were waiting for the other police to arrive,
there was no conversation between the police officer—

MR.
JUSTICE BRENNAN: But, Mr. Stokes, do you really think that if there is enough
to suggest that he had reason to believe they had weapons—if that’s so—and, if
he is justified for that reason in asking them what they were doing, don’t you
think he would be justified in the first instance in confirming whether or not
they did have weapons before he went on further to interrogate them, or even to
interrogate them at all?

MR.
STOKES: Well, if I understand your question properly, Mr. Justice, you do
preface it by saying “if there is enough”?

MR.
JUSTICE BRENNAN: That is right, yes, in this colloquy you and Mr. Justice
Fortas and Mr. Justice Stewart were having, on the premise that it was
reasonable for him to think that they had weapons.

MR.
STOKES: Well, if there was enough—if the constitutional criteria had been met,
I would say: Yes, I have no quarrel with the fact that where one makes a valid
arrest—

MR.
JUSTICE BRENNAN: Well, did you quarrel with the fact that—or do you suggest
there had to be more than appeared, before he could ask them a question?

MR.
STOKES: No, I say if he wanted to, he had the right to ask them a question.

MR.
JUSTICE BRENNAN: Well, now, if he had the right to ask them a question—lay that
aside for a moment—and he also had reason to think they might have weapons on
them, would he have to question before he frisked them for weapons?

MR.
STOKES: If we are to say, first, that he has a right to question, I am saying
that he can exercise a discretion if he chooses. I am not saying that, at that
point, he has an absolute right to question them.

MR.
JUSTICE BRENNAN: No. Would he, in your view, be abusing any right of the three
of them in walking up to them and asking their names and what they were doing?

MR.
STOKES: Yes, I am saying that, Mr. Justice. I am saying that where a citizen is
on the streets, and where all of the criteria that we know of by way of the
development of probable cause is absent, in that situation—

MR.
JUSTICE BRENNAN: That, then, the officer has no right to stop and ask: What’s
your name? What are you doing here? Is that it?

MR.
STOKES: Well, if we are going to use the absolute term “no right,” and we’re to
be held to that, then I would just have to say he has no right. It seems to me
that if he wants to exercise some discretion on his part, of walking up and
posing a question— asking a name, asking an address—this is a right he has. By
the same token, the person whose liberty is being invaded, the person who has
committed no overt wrong, and the person who is only a suspect, at that point—

MR.
JUSTICE BRENNAN: Well, may we try to get at it, in this way, Mr. Stokes: Up to
the point where he “spun Terry around had he done anything outside what a
policeman might properly do?

MR.
STOKES: No. He had done nothing outside of what a policeman might ordinarily
do.

MR.
JUSTICE BRENNAN: Now, if then at that juncture he had reason to believe they
might be armed, did he have to complete his questioning first? Or could he frisk
them?

MR.
STOKES: I would say that under the circumstances presented to me, he did not
under those circumstances have the right to lay hands on this citizen and spin
him around.

MR.
JUSTICE BRENNAN: And this would be because you do not think the record shows
that he had any reason to believe they had weapons?

MR.
STOKES: No, I am saying that at the point that you lay the hand on the citizen,
and you begin to exercise dominion on that citizen on the street by spinning
him around, I am saying, in order for you to do this you must have the probable
cause that is required to place a person under arrest, because if the person is
substantially under your custody, your dominion—

MR.
JUSTICE BRENNAN: Then you mean he can’t frisk for weapons, without probable cause
to arrest? Is that what you re saying?

MR.
STOKES: Yes.

MR.
JUSTICE BLACK: How long had he been observing9

MR.
STOKES: A period of ten to twelve minutes, Your Honor

It
seems to us, and of course our position is in this case that the Mapp
exclusionary rule under the Fourth Amendment would apply to this situation.
We’re not here advocating any change with reference to the Fourth Amendment. It
seems to us that the State is in the position of saying to the Court that they
are not satisfied with the Mapp exclusionary rule. And, as we read the rule as
we read Mapp—wedon’t see where the Court carved out any exception with
relation to a gun. It seems to us that the Court said that any arrest based
upon anything other than a probable cause is an unreasonable arrest, and that
all of the evidence must be excluded.

We
think that the deterrent that Mapp affords
us with respect to illegal searches and seizures is something that we are
willing to continue living with. And although Terry is before you, we think it goes much farther than this. We
think that when the State is saying that there is something called “reasonably
suspects,” “reasonable suspicion,” as it is put in some jurisdictions, and
they’re asking this Court to relax the Fourth Amendment, as it is known, they
are in effect asking this Court to nullify the Fourth Amendment and to overrule
Mapp v. Ohio.

We
think, therefore, that if this is to prevail, that it is for the State to be
able to persuade this Court that this Court has some­where in history permitted
something other than probable cause to determine whether an arrest and a search
and seizure is probable, or one that is impermissible. Some of the
jurisdictions—

MR.
CHIEF JUSTICE WARREN: Mr. Stokes, I wonder if that could be broken down a
little? I wonder what you would say to this: Of course the police officer does
have the right to investigate a crime; and this police officer, in this
instance, had the right to investigate the crime. He did see what one might
well say were suspicious acts on the part of the people whom he thought might
be preparing to commit a crime.

He
had a right, did he not, to pursue that further to determine whether or not he
would have probable cause, perhaps, for an arrest? Pursuant to that, he went to
talk to these men. Now, because of the nature of the crime that he suspected—a
robbery— he felt that when he went into the company of these three men, against
himself alone, that he was in a dangerous position; and, that, therefore, he
had probable cause to see if they had weapons on them, not because he had
proper cause to believe they had committed a crime, but because in
investigative matters he had probable cause to believe that his life was in
danger.

Now
under those circumstances, would you think that he did, or did not have a right
to ascertain whether he was in a position of danger, by seeing if they had
weapons?

MR.
STOKES: Only if we’re going to relax the standard of probable cause, as we know
it, under the Fourth Amendment. He didn’t permit this situation to ripen into
the point where it had ripened into a probable-cause-type of a situation. He
was a little ahead of himself, in this situation, and our position would have
to be that you don’t have a right to protect a constitutionally impermissible
arrest; and, consequently, this is the way we would have to answer it.

MR.
CHIEF JUSTICE WARREN: Police officers are very often in a position where they
might not be able to make an actual arrest, but they are in a position of great
danger. Now, where they are in a position of great danger, are they in a
position to protect themselves from violence, by looking into the situation to
see if anyone is armed to do them violence?

MR.
STOKES: Yes, Mr. Chief Justice. He certainly has a right of self-defense, and
he has a right to protect himself. But the product, once it has been
removed—the danger has been removed—we are saying that in this case, since it
was not based upon probable cause, we should not protect the constitutionally
impermissible arrest, by permitting the yield of that arrest to come into
evidence against the defendant.

MR.
CHIEF JUSTICE WARREN: Take a situation of this kind, where a police officer
sees someone acting very peculiarly. It might not be in connection with any
information he has about any crime. Maybe the person is abnormal, mentally.
Maybe he thinks he’s insane and he wants to talk to him. But the man shows indi­cations,
he thinks, of violence and he wants to be sure he won’t be attacked when he
goes to talk to him. He goes up to speak to him, and also ascertains whether he
has any weapon on him. Do you think he has a right to do that, as a matter of
probable cause that he might be injured himself if he doesn’t take precautions?

MR.
STOKES: I think we are faced with this, Mr. Chief Justice:

The
average police officer would do this under these circumstances. If he felt
himself to be in any type of danger, he would conduct a search, for the purpose
of protecting his own life in a possibly dangerous situation. But I am saying
that we cannot— merely because of that type of situation, and it not being what
is required by the Fourth Amendment—we can’t give sanctity to it by way of
saying: Since you did find this product, we’re going to permit it into the
evidence.

MR.
CHIEF JUSTICE WARREN: I’m not arguing with you. I’m just seeing how far we have
to go in a situation of this kind. That’s the only reason I put my question.

MR.
STOKES: Certainly, Your Honor.

Another
thing I think the Court has to take into consideration here, of course, is the
impossibility that this Court has of standardizing such a subjective thing as
“intuition.” All the amicus briefs
say: Permit us this standard that is less than probable cause; permit us to
stop and frisk people on the streets. Now experience has already taught us, if
the Court please, that policemen have had enough difficulty being able to
grapple with and to determine for themselves what is tantamount to probable
cause, as it has been enunciated in the decisions by this Court. Now they’re
saying to this Court: Give us another standard. Give us this, “reasonably
suspects,” or “based upon suspicion,” or whatever the standard is that’s less
than probable cause. And we think that we’re just compounding the policeman’s
problems if the Court does permit this type of a thing to occur.

With
reference to the basic guarantee that we are concerned about here, I don’t
think we are so much concerned, really, about Terry, because over the years it has been the person who has been
involved in criminal activity that has come before this Court in order for this
Court to again take a look at some of our basic constitutional guarantees. And
I think, through Terry, that we look
at the hundreds of people walking the street by the day, because police
officers, or a police officer, finds himself observing a situation where he
says, as he did in this case, “Well, to tell you the truth, I just didn’t like
them and then I began watching them.” And then the fact that he wants to go
further—and at that point, I think we’re subjecting all of the people who have
this inviolate right of privacy, to this type of activity on the public streets
throughout our nation.

I
would like to reserve five minutes of my time.

MR.
CHIEF JUSTICE WARREN: Mr. Payne?

ORAL
ARGUMENT OF REUBEN M. PAYNE, ESQ.,

ON
BEHALF OF THE RESPONDENT

MR.
PAYNE: Mr. Chief Justice, if it please the members of the

Court:

At
the outset, may I direct my attention to page 19 of my brief. There it is
indicated that after the officer had testified that he observed the conduct of
these men, and that he had concluded that they were casing an establishment for
a robbery, we find this quote appearing from the record: “Question: Detective
McFadden, can you tell us why you turned John Terry around facing the other two
men, with you behind him?” “Answer: Due to my observation, the observation on
Huron Road of these two men, I felt as though they were going to pull a
stick-up and they may have a gun.” That is supported and substantiated in the
record of this particular case.

A
question has been asked here: What is the difference between “reasonable
suspicion,” and “probable cause”? In one instance, in the arguments of the case
before this Court, the Court of Appeals in the Peters case, has said: “It is that cause which is somewhat below
probable cause on the scale of absolute knowledge of criminal activity.”

MR.
JUSTICE BLACK: The question I had in my mind was this—I can understand why you
have a difference of words—this “scale a little below.” I can’t, myself, see
any difference in—I’m talking about conduct—in having a “reasonable suspicion”
something is about to be done, and in “having probable cause to believe”
something is about to be done.

MR.
PAYNE: I cannot see any basic difference in having a reasonable suspicion and
equating it with the term “probable cause,” in and of itself. It has been
indicated that we have asked for a different standard here, as to probable
cause. I find no problem with this, particularly, because I do not ask for a
different standard of probable cause, as it may relate to the right to lawfully
arrest a person.

I
think the quantum of evidence that is basic and essential under the
circumstances to establish probable cause for the officer to arrest, or to stop
a person and to ask him questions, may be somewhat lesser in degree but, by the
same token, it is probable cause under any circumstances. The same
circumstances are indi­cated—

MR.
JUSTICE BLACK: What do you understand “probable cause” to mean?

MR.
PAYNE: I understand “probable cause” to mean, for an arrest, that—

MR.
JUSTICE BLACK: Wait a second. “Probable cause to believe something will
happen.” What do you mean when you say that?

MR.
PAYNE: When a person is observed in circumstances which suggest that he has
committed, or is about to commit a felony or a misdemeanor, and such action is
reasonably necessary to enable the officer to determine the lawfulness of the
person’s conduct; and the key word here is the “circumstances” at that
particular time.

MR.
JUSTICE BLACK: Would you mind telling me, in your language—plain ordinary
language—what you understand to be meant when somebody says, for that reason,
says that a thing is probable cause to believe that something will happen”?

MR.
PAYNE: I understand that to mean the taking into consider­ation of the totality
of the circumstances, as a responsible person views it, at that particular time
in relation to his work. For example, the police officer here, in taking in the
totality of the circumstances that he observed, under the conditions which he
observed them, that the conduct that existed and the ideas that maybe were
flowing from the conduct which he observed here, would establish probable
cause.

MR.
JUSTICE BLACK: Do you understand it to mean reasonable grounds to believe
something is going to happen?

MR.
PAYNE: I understand—I believe that it does mean reasonable grounds that
something is going to happen.

MR.
JUSTICE BLACK: It does not mean, does it, that it’s bound to happen?

MR.
PAYNE: It does not mean that it is bound to happen.

MR.
JUSTICE BLACK: Therefore, you’ve got to have something that is ‘‘reasonable
grounds’’ for saying you believe it will happen.

MR.
PAYNE: I agree with you, sir.

MR.
JUSTICE MARSHALL: Mr. Payne, in this case this arresting officer testified, did
he not, that he had never seen anybody ‘‘case a joint’’?

MR.
PAYNE: That is correct; he did so testify.

MR.
JUSTICE MARSHALL: He also testified that he had been on that same area for some
thirty years, doing the following things: Checking for pick-pockets, and
shoplifters?

MR.
PAYNE: That’s correct.

MR.
JUSTICE MARSHALL: So, where did he get his expertise about somebody about to
commit a robbery?

MR.
PAYNE: I think that he would get his expertise by virtue of the fact that he
had been a member of the police department for forty years, and by being a
member of the police department for forty years I am quite sure that, even if
by osmosis, some knowledge would have to come to him of the various degrees of
crimes—

MR.
JUSTICE MARSHALL: Now we’re getting intuition by osmosis?

[Laughter.]

MR.
PAYNE: Not at all, sir. Not at all.

MR.
JUSTICE MARSHALL: I’m sorry.

MR.
PAYNE: I didn’t mean to imply that; nor did I mean any disrespect by so using
that particular term. I think that, for example, if I as a lawyer am around a
particular office for a number of years, that I certainly must gain knowledge
about various concepts of law that may come about from time to time.

MR.
JUSTICE MARSHALL: There are exceptions to this.

[General
laughter.]

MR.
PAYNE: I would agree with the Court, in the circumstances also.

MR.
JUSTICE MARSHALL: Seriously, Mr. Payne, the point is that the only thing he
noticed was: A man leaves from a position of talking to another man, and goes
across the street, looks in a window, and goes back. Now, number one, you will
agree that everybody who looks in a public window is not “casing the joint”?

MR.
PAYNE: I agree.

MR. JUSTICE MARSHALL: But they did it
twice, or three times. How many times?

MR. PAYNE: It was—

MR. JUSTICE MARSHALL: It is not too
clear to me from the record.

MR. PAYNE: May I then, in response to
the Justice’s question, indicate first of all, and clarify this, his testimony
was not that he “didn’t like him.” His testimony was that he “didn’t like their
looks.” Now I don’t think that he meant by that any reference to pigmentation
or anything else. I think that he meant by that, when we take the entire record
into consideration—the fact that this was in a downtown area, that these people
were not continuing in the regular flow of commerce as were other people on the
street—

MR. JUSTICE MARSHALL: That they “beared
watching,” you

would say?

MR.
PAYNE: I’m sorry. I didn’t—

MR.
JUSTICE MARSHALL: They “beared watching”?

MR.
PAYNE: They beared watching.

They
were standing on the corner conversing. Then, because of their not continuing
in the flow of regular commerce, he observed one of the petitioners walk away
from the other one and proceed approximately 100 feet west, up the street. He
noticed the unusual activity of this petitioner peering into the jewelry store,
or the airline office there, that there was something in the vicinity of the
airline office—or the jewelry store—which excited the petitioner’s attention in
some manner, or in some way. He then returned to his companion on the corner,
had a conversation with his companion; his companion, in turn alternately proceeded
up the street, and conducted himself in the very same manner; that they
alternated in this way, four or five times; that, thereupon, a third man came
from across the street and had a conversation with them and after having that
conversation with them; that the third man returned back across the street and
stationed himself there; that these individuals then engaged in the conduct
which I have described previously, four or five additional trips after that.

And,
that then after engaging in these additional trips, making a total of some ten
to twelve trips, he observed that their interest was centered on the jewelry
store or the airline office; that after so making the total number of trips,
they then went across the street, and there again the three men came together,
at which time they were having a conversation and at which time the officer had
concluded that they were casing the establishment for a stickup.

Under these circumstances, I say to the
Court that the taking into consideration that an officer who is by himself,
taking into consideration the number of persons involved—

MR. JUSTICE MARSHALL: But didn’t your
own court say they did not have probable cause to arrest, as of this point we
are now talking about?

MR.
PAYNE: The trial court indicated that, at this point, that there was not
probable cause for arrest. The appellate court did indicate that there was
probable cause for arrest, after the frisk took place.

MR.
JUSTICE MARSHALL: No, I mean—well, we haven’t frisked him yet.

MR
PAYNE: That is correct.

MR.
JUSTICE MARSHALL: So he didn’t have probable cause to arrest, when he
approached.

MR.
PAYNE: I would agree with this.

MR.
JUSTICE MARSHALL: And he didn’t get probable cause until he put his hands on
the butt of the gun.

MR.
PAYNE: He didn’t get probable cause to arrest-

MR.
JUSTICE MARSHALL: —him until he put his hands on the butt of the gun, in his
inside coat pocket.

MR.
PAYNE: No, sir.

MR.
JUSTICE MARSHALL: Is that right?

MR.
PAYNE: No, sir.

MR.
JUSTICE MARSHALL: When did he get probable cause to arrest?

MR.
PAYNE: He received probable cause for arrest when he turned Terry around and
ran his hands over the outside of his clothing and, feeling a gun in the upper
left-breast pocket, and indicating emphatically at that time that, “What I felt
was a gun, a weapon.”

MR.
JUSTICE MARSHALL: Well, he didn’t have it, as counsel for petitioner says, he
didn’t have it when he laid hands on him and turned him around?

MR.
PAYNE: I would agree. He did not have probable cause to arrest.

MR.
JUSTICE MARSHALL: Right.

MR.
PAYNE: I would agree that he would have probable cause to frisk, or to lay
hands on him, at this point.

MR.
JUSTICE MARSHALL: Why?

MR.
PAYNE: Because of the nature of the circumstances and protection of his own
life.

MR.
JUSTICE MARSHALL: He didn’t say he saw the gun bulging, or anything like that?

MR.
PAYNE: No, he did not say that he saw a gun bulging. He indicated that: “They
were casing a joint for a robbery,” which implies a crime of violence, which
implies that they have a gun. That, coupled with the fact that after he made an
identification of himself when approaching these men, and indicated to them
that he was a police officer, that the response which they gave was in the
manner of evading the question which he had put to them, under these circumstances
I think that—

MR.
CHIEF JUSTICE WARREN: What was the colloquy at that point?

MR.
PAYNE: The question which was put to them by the officer: “What are your
names?” As to this, there was a mumbled, incoherent response made in reply to
that particular question And this, of course, coupled with his observations and
conclusions which he had made previously, there was probable cause for this
officer to further investigate for weapons, under these circumstances, to
determine and to protect his own life here.

Now,
it is my contention—

MR.
JUSTICE BRENNAN: Mr. Payne, you have said repeatedly now, if I understand you,
that “probable cause”—are you saying something like this: that while there may
not have been probable cause to arrest, in the sense of taking him to the
police station and booking him for some crime, that at least in these
circumstances there was probable cause to “arrest,” in the sense of asking them
questions such as: Who are you, and what are you doing here? Is that what
you’re saying?

MR.
PAYNE: I hesitate in the use of the term “arrest.”

MR.
JUSTICE BRENNAN: You are saying “probable cause,” in these circumstances—and I
gather what you must mean—is that if the detainment is an arrest, it was to be
a detention only long enough to find out what they were doing. Is that correct?

MR.
PAYNE: That is correct.

MR.
JUSTICE BRENNAN: And that then, if the officer had probable cause to think they
had weapons on them, that in those circumstances he was justified in frisking
them for weapons. Is that it?

MR.
PAYNE: That is correct. And, too, if I may put it in my own language, I am
saying that there was probable cause for the officer to interfere with their
freedom of action, at this point, and that such interference with their freedom
of action is not in a significant way at this time.

MR.
JUSTICE BRENNAN: Well that’s what I understood to be your argument in the use
of “probable cause.” What you’re really doing is saying you don’t have to
change the label; it’s still probable cause, and it’s still an arrest—but an
“arrest,” for the purpose merely of asking the question: Who are you and why
are you here? And this is a different thing than an arrest for the purpose of
taking them to the station house and booking them for a crime. Is that it?

MR.
PAYNE: Under Ohio law, I could not agree with this concept because under Ohio
law the definition of “arrest,” is by statute.

MR.
JUSTICE BRENNAN: Well, forgetting Ohio law for a moment, how about for the
purposes of the Fourth Amendment?

MR.
PAYNE: For the purposes of the Fourth Amendment, it would be reasonable action
on the part of this officer—

MR.
JUSTICE BRENNAN: But I thought you agreed with Justice Black before, that
really, reasonable action and probable cause are pretty much synonymous terms?

MR.
PAYNE: I do, Your Honor.

MR.
JUSTICE BRENNAN: So we can stick to the jargon “probable cause” and make the
distinction that way?

MR.
PAYNE: I agree. I think that the Court can stick to the jargon of “probable
cause” and make any distinctions under the circumstances in this respect.

MR.
JUSTICE BLACK: As I see it, what you and your case are really substantially
arguing is that to stop a man, or to ask him a question by an officer, is not
an “arrest” under the Fourth Amendment description of an arrest?

MR.
PAYNE: It is not an arrest.

MR.
JUSTICE BLACK: It seems to me that that’s the real basis of your argument. What
you’re talking about is an arrest, and you’re saying it doesn’t arrest him to
ask him a question.

MR.
JUSTICE BLACK: It might be an assault, but not an “arrest,” under the
constitutional meaning?

MR
PAYNE: It does not interfere with his freedom in a significant way.

MR.
JUSTICE BLACK: He hasn’t taken him into custody, you say?

MR.
PAYNE: That is correct.

MR.
JUSTICE BLACK: That is, under an arrest?

MR.
PAYNE: That is absolutely correct.

MR.
JUSTICE BRENNAN; Weel, Mr. Payne, that’s not quite the same thing you said to
me.

[Pause.]

MR.
JUSTICE BRENNAN: I don’t understand. I thought You said to me earlier that
there might be an arrest, for some purposes; and an arrest for some other
purposes—Fourth Amendment purposes; and that an “arrest,” for the purpose of
asking a chap his name—which follows from a detention—or, “what’s he doing
here,” there might be probable cause for that sort of thing without any
violations, even though it could not be in the same circumstances “probable
cause” to take him to the station house and book him for a crime.

MR.
PAYNE: I did not mean to imply—because I had indicated to the Court that
certainly “arrest,” in Ohio, is defined by statute. And I thought I did
indicate to the Court that the detention of his freedom here, at that time, is
not an “arrest” in the sense that we understand it to be—

MR.
JUSTICE BRENNAN: It’s certainly not an arrest in the sense of taking him to the
station house and booking him for a crime; but, if he’s detained, isn’t it in
the nature of an “arrest”?

MR. PAYNE: No.

MR. JUSTICE MARSHALL: Well, Mr. Payne,
couldn’t you say that when he laid hands on him and swung him around that the
petitioner’s freedom of movement was arrested?

MR. PAYNE: I would agree that his
freedom of movement was arrested.

MR. JUSTICE MARSHALL: But that’s not an
arrest.

MR. PAYNE: I do not agree that his
freedom of movement was arrested “in a significant way.”

MR. JUSTICE MARSHALL: You mean because
he only turned him around? It didn’t take long to turn him around?

MR. PAYNE: No. I mean in the sense of
the circumstances involved at that particular time.

MR. JUSTICE MARSHALL: Well, in this
particular case he laid hands on him, and swung him around. How many days later
was he free to go, from that moment on, in this case?

MR. PAYNE: If there had been no more—

MR. JUSTICE MARSHALL: No. In this
particular case, when did he next get out? When did Terry get his freedom?

MR. PAYNE: Some time after he was
convicted of the crime of carrying a concealed weapon.

MR.
JUSTICE MARSHALL: So his freedom was arrested, for quite a while.

MR.
PAYNE: Not on the basis of his swinging him around; but on the basis of the
concealed weapon which he was carrying, and the crime that he was committing in
the presence of the officer at that time.

MR.
JUSTICE BLACK: You don’t deny he was arrested; you’re arguing about that time
before he was arrested.

MR.
PAYNE: That is correct.

MR. CHIEF JUSTICE WARREN: When did the
arrest take place? Just speaking in ordinary terms, now, not “little arrest,”
or “big arrest,” but speaking in ordinary terms, when was he arrested?

MR.
PAYNE: Speaking in ordinary terms, he was arrested after the officer felt the
weapon and ordered them into the interior of the store. And it was not until
that time, after he felt the weapon on the outside—he did insert his hand and
feel the butt of the gun afterwards, and after taking them on the inside and
they were placed against the wall; when the coat was pulled from his shoulders
and then the gun was taken from out of the pocket of Terry; he then went to the
other petitioner and patted him on the outside of his clothing and thereupon
felt a weapon that he had testified to—it was after patting on the outside of
his clothing, that he inserted his hand into his pocket and removed the weapon
from the second individual, or person involved here.

So, the arrest took place the moment
that he ordered them into the store itself. Their freedom of movement was
interfered with, significantly, at that time so that they could not—

MR. JUSTICE BRENNAN: Let’s use the
Fourth Amendment language, then. When was the first “seizure” of the person?

MR. PAYNE: The first seizure of the
person was at the time that he ordered them into the store.

MR. JUSTICE BRENNAN: You mean when he took
Terry and swung him around there was no seizure of the person?

MR. PAYNE: I think there was a
“temporary detaining,” or “interference” with his person.

MR.
JUSTICE BRENNAN: Well, he had his hands on him and he switched him around.
Surely—there was no seizure of the person?

MR.
PAYNE: But here again we’re dealing with simple semantic words.

MR.
JUSTICE BRENNAN: That word is in the Fourth Amendment, isn’t it?

MR.
PAYNE: I agree that it is, sir.

MR.
JUSTICE BLACK: What is the difference between “seizure” and “arrest”? You know,
a seizure—you don’t seize a man—I mean, you may seize him because you “seize”
something tangible, but that’s not what you are talking about in a seizure in
the Fourth Amendment. I thought it was an arrest?

MR.
PAYNE: It is an arrest that I understand we are discussing in this matter.

MR.
PAYNE: —that he could very easily turn the man around, and some may term that
as a “seizure of the person” himself; but I would not term it as a seizure of
the person himself unless he has the intention of taking that person into
custody, even though he may lay hands on him at that particular time.

MR.
JUSTICE BLACK: Well he undoubtedly did this when he ordered them to get into
the store and turn their palms towards the wall and stand there. At that point,
there can be no doubt about an arrest, I guess.

MR.
PAYNE: I would agree. I think that the affirmance of the conviction of the
petitioners on the law in the instant case is reasonable, is necessary, and is
appropriate to secure the safety and the welfare and the best interest of the
public of the State of Ohio, because we are asking here—and I am, perhaps,
bound to indicate that the Court of Appeals has suggested in this particular
case—that we authorize the stopping under these circumstances where there are
these surrounding circumstances, for the protection of the officer’s life and
for the protection to the community that will exist if this is not permitted in
this manner and this way, depending upon the circumstances that exist at this
time.

The means that is selected, as
enunciated by our trial court and the Court of Appeals in this case, have a
direct substantial relationship to the concept of the safety and the welfare
sought to be obtained in the affirmance of this particular case here. If we
consider the comments of the trial judge at the time that he gave his opinion
in connection with this matter, the trial judge made these remarks: “I am a
great believer of the personal rights propounded by our Supreme Court,
reiterated and reaffirmed, neglected over the years and given to us under the
Fourth Amendment and other amendments of the Constitution.”

Secondly, the trial court said, “At the
same time, a police officer cannot, as far as this Court is concerned, and will
not be permitted to stop and frisk an individual simply because he has a
suspicion—a mere suspicion—unless there are reasonable circum­stances
justifying the frisk.”

Three. “When the circumstances justify,
and there is reasonable suspicion, and for his own personal protection, he may
frisk to determine if there are weapons—for his personal safety.”

Four. “The officer assigned in the area
in which he had been placed, doing the job he had been doing, and had
reasonable cause to believe and to suspect that the defendants were conducting
themselves suspiciously and some interrogation should be made of their action.”

Five. “There was reasonable cause in
this case for the officer to approach these individuals and pat them down.”

Here is a decided attempt on the part
of the trial judge to equate and balance the rights of the individuals with the
rights of the public and the safety that is involved herein as it pertains to
the officer in this particular case. What are the “reasonable cause
circumstances” that existed in the mind of the officer at that particular time?

One, we have a police officer in his
particular area, on duty, and his duty is to maintain law and order. His duty,
too, is to prevent crime if he can so do.

Second, he has 39 years of experience
herein.

Fourth, the observations of the
suspicious activity which he observed, which may be determined as pre-detention
conduct.

Five, he concludes from the
observations and the conduct of these men that a crime of violence with the use
of weapons in probability may be committed under these circumstances.

Six, he decides to investigate and to
interrogate, and the record indicates and shows that at this particular time,
“Why did you go over to these men?” “I went over to them to ask them some
questions.”

Eight, when he asked their names, he
received this mumbled incoherent response, which further gave rise to the
circumstances that he had concluded previously that a stick-up was possible
here.

At
this point, taking into consideration the nature of the crime which he has
concluded—a stick-up—and the use of weapons as they are characteristically used
in a stick-up, there is only one course of conduct then open to a prudent
police officer. And that is, to frisk or pat for weapons, for the protection of
his life. This is why we consider it in the interest of safety and public
welfare in the State of Ohio.

Seven—or,
not seven, but—ten, there was the absence of assistance to this officer, at
this time, in relation to the number of individuals involved here. There was
one police officer and three men. The type of clothing, also, he considered at
this particular time because they were wearing overcoats, and the possibility
that they might have concealed weapons, as they did exist here; the sex of the
subjects, also, I think he had to take into consideration, at this particular
time. There were three agile, young men that he was confronting, and he was by
himself at this particular time.

Under
these circumstances that he was confronted with at this time, I believe it was
in the interest of public safety; I believe it is in the interest of the
welfare of the community and society, that he have the right, based on these
probable cause circumstances, to frisk this man, to temporarily detain him, to
ascertain that which he has observed, and to confiscate any weapons which he
might find on his person at that particular time; and, that they are admissible
in the evidence of his trial subsequent thereto.

I
think that if, as the question was placed by one of the Justices of the Court,
that after the probable cause that exists here in this particular case, I feel
that the judgment in the case should be affirmed.

MR.
CHIEF JUSTICE WARREN: You may have three more minutes to finish.

MR.
STOKES: Thank you, Your Honor.

MR.
CHIEF JUSTICE WARREN: Your time had expired.

REBUTTAL
ORAL ARGUMENT OF

LOUIS
STOKES, ESQ., ON

BEHALF
OF PETITIONERS

MR.
STOKES: Thank you very much, Mr. Chief Justice:

We
would just ask the Court to consider that, on the state of the record, this
police officer is acting upon the suspicion he has that these two men are
casing a place; that the stores where they are supposedly casing, are located
on Huron Avenue at Fourteenth Street at the apex. These men have gone down
Euclid Avenue, where Huron Avenue cannot even be seen. They are standing in
front of a store there that has not, on the state of this record, been cased at
the time they are approached and subjected to the arrest.

We
would ask this Court to be mindful, also, of the fact that if this Court does
affirm this decision, it will in effect be affirming the decision rendered by
the Court of Appeals, in which they have established the fruit-of-the-frisk
doctrine for the State of Ohio. I would ask you to keep in mind that the State
of Ohio’s legislature has just considered, a few months ago, and rejected a
stop-and-frisk bill similar to that of the State of New York.

Lastly,
we would ask you to consider, in accordance with decisions such as DeRay,where this Court has said a search is either good or bad when it
starts, and it does not change character thereafter; and, that the
after-the-event justification does not relate back to justify the original,
initial unlawful search.

Thank
you.

MR.
JUSTICE BLACK: Let me ask you if this is not what you’re really asking us to
hold—I’m not saying we shouldn’t. You ask us to hold, as I understand it, that
no officer has a right to interrogate people, and expect to get an answer,
unless he already has in his possession, or in his mind, evidence sufficient to
show probable cause that that person has committed a crime, or is about to
commit one?

MR.
STOKES: I can’t take it that far.

MR.
JUSTICE BLACK: Well, how far would you take it?

MR.
STOKES: I’m saying that where the police officer chooses, with reference to
whatever his determination has been, to interrogate or to investigate further
with respect to citizens lawfully on the street, that in order to exercise
dominion or custody or control over that citizen, and thereby deprive him of
his rights under the Fourth Amendment, that he must have before approaching him
that probable cause which this Court has made reference to in its decisions.

MR.
JUSTICE BLACK: Well, what about asking him questions and expecting him to
answer?

MR.
STOKES: He has the right to approach him and ask his questions.

MR.
JUSTICE BLACK: Does he has a right to expect an answer, and to do anything
whatever if he doesn’t get it?

MR.
STOKES: I think that in the absence of this person having committed any crime
of any sort, and where the approach is based on suspicion alone, the person
being subjected to the interrogation has the right to refuse to answer, or to
turn away.

MR.
JUSTICE BLACK: What you’re saying is that a policeman does not have the right
to ask a person a question on the street and get an answer, or to keep him, or
do anything else except just ask him a question, unless he’s in possession of
sufficient facts to know that he has probable cause to believe that that man
has committed a crime or is about to commit a crime?

MR.
STOKES: Mr. Justice, I’m sorry if I’m giving you the impression that a police
officer cannot ask him a question.

MR.
JUSTICE BLACK: I said, “can ask him a question,” but cannot get an answer, and
do nothing about it.

MR.
STOKES: He can arrest him, if he chooses.

MR.
JUSTICE BLACK: He can arrest him. But supposing he doesn’t choose to arrest
him? Suppose he wants to do something short of arresting him?

MR.
STOKES: Then I don’t think he has that right.

MR.
JUSTICE BLACK: Then the man can go on off, not answer the question because the
officer doesn’t have at that time a sufficient amount of evidence to make a
case of probable cause that he has committed a crime?

MR.
STOKES: That is precisely what I’m saying, because otherwise the Fourth’s
inviolate right of privacy is being invaded.

MR.
JUSTICE BLACK: Well, that’s all. I thought that was it.

MR.
STOKES: Yes, sir.

MR.
CHIEF JUSTICE WARREN: Very well, Mr. Stokes.

MR.
STOKES: Thank you.

[Whereupon,
at 2:05 p.m. the oral argument in the above-entitled matter was concluded.]